Legal Position of Russian Lesbians and Gays

CONSTITUTIONAL LAW

The
new, democratic Constitution of the Russian Federation was adopted on December
12, 1993. Article 19 of the Russian Constitution provides a formal 'equal
treatment' provision stipulating that the state shall guarantee the equality of
human rights and freedoms irrespective of gender, race, ethnicity, language,
origin, material or official position, residence, religion, opinion, membership
in public associations, as well of other circumstances. Sexual orientation is
not explicitly mentioned. Theoretically, it may fit into the category of 'other
circumstances', though none of Russian legal scholars has ever pronounced on
the issue.[1]

The
Russian Constitution contains explicit references to the supremacy of
international covenants and agreements on human rights.[2]
Article 46.3 of the Constitution further provides for the right to file claims
with the international bodies for the protection of human rights upon
exhaustion of domestic means.

The
Russian Federation is a member of the Council of Europe since 1996.[3]
Russia ratified the European Human Rights Convention in 1998[4]
and undertook to abide by the final judgment of the European Court for Human
Rights in any case to which the Russian Federation is a party. Although the
Convention or the additional 'anti-discrimination' Protocol No. 12 currently
open for signature by member states do not mention explicitly sexual
orientation, it has been argued that the Convention provides sufficient safeguards
for a sexual orientation discrimination case to be considered on the merits by
the European Court for Human Rights.[5]
Recent developments in the case law of the Court support this point of view.[6]
A claim to the European court is the last resort for Russian lesbian and gays
who are unable to get protection in sexual orientation discrimination cases
from the Russian conservative judiciary.[7]

CRIMINAL LAW

Since 1993, consensual male
homosexuality is not a criminal offence under the Russian penal law.[8]
Female homosexuality has never been legally prosecuted, although some reports
suggest that until early 90s Soviet lesbians were subjected to forced
psychiatric treatment.[9]

The new Criminal Code of
the Russian Federation entered into force on 1 January 1997.[10]
The new code embraces 'separate but equal' concept – two mirroring articles
provide precisely the same penalties for a rape (presumed to be heterosexual)
and 'forced actions of sexual nature' which include buggery and lesbianism.[11]
Damage to health, HIV infection or death of the victim, or against a minor
aggravate the punishment in both cases. These articles are the only ones that
make explicit references to respective gender of the perpetrator and the
victim. The following article 133 - prohibiting 'coercion into actions of
sexual nature' - uses an open-ended list of offences which includes 'sexual
intercourse [presumed to be heterosexual], buggery, lesbianism or other actions
of sexual nature' irrespective of the gender of the victim.

The consent age was initially
set at 16 years both for hetero-, and homosexual intercourse.[12]
In 1998 the consent age was further lowered to 14 years.[13]
Article 134 of the Criminal Code penalizes 'sexual intercourse, buggery or
lesbianism' committed by a person over 18 on a person 'admittedly under 14
years old'. Article 135 further prohibits 'corruption of morals carried out
without the use of force against a person admittedly under 14 years old'.
'Corruption of morals' is a fairly broad concept that includes, inter alia, sexual intercourse in presence
of the adolescent, exhibitionism, demonstration of pornographic videos or
pictures, reading of pornographic literature.[14]
The word 'admittedly' (zavedomo)
means that the perpetrator can only be held liable if s/he had known or surmised
that the adolescent was under 14 years old.[15]

The Russian Criminal Code
prohibits incitement to ethnic, religious or racial enmity[16],
but this list is exhaustive and cannot be applied to homophobic hate crimes.
There is no specific gay hate crime laws in Russia.

CIVIL AND FAMILY LAW

From the point of view of the Russian civil law,
the status of same-sex couples is no different from that of roommates. There is
no law on registered partnerships in the Russian Federation, nor does the
Russian Civil Code recognize de facto
cohabitation as having any legal consequences.

The Russian Family Code defines 'marriage' as a
union of one man and one woman.[17]
Although foreign marriages are generally recognized in the Russian Federation,[18]
same-sex marriages (e.g. on the Dutch model) may not be honored as
contradictory to the 'public order'.[19]

Only married couples or single individuals may
adopt children.[20] Joint
adoption by same-sex partners is illegitimate, nor are partners able to adopt
each other's children.

HOUSING LAW

All Russian residents are under an obligation to
register their residence with the local police department.[21]
In bigger cities, such as Moscow and St. Petersburg, this requirement is
strictly enforced and the police cracks down on 'non-registered' residents.[22]
The Moscow Mayor introduced a system under which a new resident must first get
an approval from the municipal authorities. We know of several instances where
same-sex partners have been denied the permission to dwell together on various
formal grounds, such as 'absence of kinship' or 'sanitary norms'.[23]
Although the Russian Constitutional Court has pronounced on the
unconstitutionality of such practices,[24]
they remain in place.[25]

LABOR LAW

The Russian Labor Code prohibits the discrimination
of job applicants and discriminatory dismissals in general terms;[26]
again, sexual orientation is not explicitly mentioned. We know that openly
lesbian or gay persons are often discriminated at the job application stage or
fired after 'coming out',[27]
but to date there has been no attempt to appeal those instances of
discrimination in court. A test case is hard to come by since there are no
witnesses willing to testify in favor of a homosexual person for the fear of
losing their job.

[2]Article 15.4 of the Constitution of the Russian Federation provides
that 'generally recognized principles and norms of the international law and
international treaties [concluded] by the Russian Federation shall be an
integral part of its legal system. If an international treaty [concluded] by
the Russian Federation provides for the rules different from those in the
[domestic] law, the rules of the international treaty shall be
applicable."

[3]Council of Europe Committee of Ministers Resolution (96)2 Invitation to the Russian Federation to Become a
Member of the Council of Europe; The Russian Federation Federal Law
No. 19-FZ On the Accession of Russia to the
Statute of the Council of Europe of 23 February 1996.

[4]
The Russian Federation Federal Law No. 54-FZ
On Ratification of the Convention for the Protection
of Human Rights and Fundamental
Freedoms and Protocols Thereto of 30 March 1998. The Convention
entered into force for the Russian Federation on 5 March 1998.

[11]Articles 131 and 132 of the Criminal Code. The Russian word for
male sexual intercourse is ' muzhelozhstvo'
or literally 'a man lying with a man', we will use the word 'buggery' as the closest
in usage.

[20]
Article 125.1 of the Family Code and Regulations on Transfer of
Children for Adoption and Exercise of Control over their Living Conditions and
Education in Adoptive Families in the Territory of the Russian Federation
approved by Resolution 275 of the Russian Federation Government of 29 March
2000

[21]
Rules of Registration and Unregistration of Russian Federation Citizens' Permanent and
Temporary Residence within the Russian Federation approved by Resolution 713 of
the Russian Federation Government of 17 July 1995 (as amended on 16 March 2000)

[22]
See, e.g., Human Rights Watch World Report 1999 stating that 'the
Moscow city police continued to enforce registration rules in a predatory and
discriminatory way, beating and extorting bribes…', or Human Rights Watch World
Report 2000 confirming that 'the Moscow city government unleashed a ferocious
crackdown on non-Muscovites,… forced all non-Muscovites to re-register with
police and housing authorities, and rounded up and "deported" from
the city limits thousands who lacked registration documents".

[26]
Articles 16, 40-2 and 77 of the Russian Federation Code of Labor
Laws as of 25 September 1992 (as amended on 30 April 1999)

[27]
Personal interviews in 1998-2000. Unlawful lay-offs were
wide-spread after the financial collapse in August 1998; economic hardships
were often used as a pretext to get rid of 'unwanted' employees.